Opinion Number. 1478

Subject

Export of Goods customs: regulation of export of goods: commonwealth legislation covering field: validity of state legislation regulating export of sandalwood: inconsistency

Key Legislation

Sandalwood Act 1930 (SA) s 8: customs act 1901 Part VI, s 112: constitution s 109

Date
Client
The Secretary, Department of Markets

The Secretary, Department of Markets has forwarded to me for advice the following memorandum:

I desire to inform you that an agreement is in existence between the South Australian Government and the Co-operative Sandalwood Co. (South Australia) Ltd., under which the Company has the right to remove the commercially valuable sandalwood (which includes the roots and butts) from certain areas of crown lands for a period ending on 31st January, 1931. It is understood that this sandalwood, when cleaned, is exported to China.

Recently, the South Australian Parliament passed the Sandalwood Act 1930 (copy enclosed), the purpose of which is stated to be ‘to fix the maximum amount of sandalwood which may be taken from land within the State and for purposes incidental thereto’. Section 8 of this Act reads as follows:

    1. No person shall purchase for the purpose of re-sale or for the purpose of export, and no person shall export to any place beyond Australia any sandalwood unless he has been registered by the Commissioner as a sandalwood dealer.
    2. The Commissioner may impose any conditions of registration which he thinks fit, including (but without limiting the generality of this subsection) conditions fixing the maximum amount of sandalwood which the person registered may export overseas, and upon breach of any condition may as an administrative act cancel any registration.
    3. Registration of a sandalwood dealer shall remain in force for the period fixed by the Commissioner.

Advice is desired as to whether the South Australian Parliament has power to legislate as set out in the section quoted, or whether the power to prohibit the exportation of goods from the Commonwealth can be exercised by the Commonwealth only.

The matter of the export of goods from the Commonwealth is one which has been dealt with in Part VI of the Customs Act. The exportation of goods of certain specified classes is prohibited by section 112.

The section also gives the Governor-General general power by proclamation to prohibit the importation of any goods in time of war.

It is in my opinion clear that the intention of the Commonwealth Parliament was to deal with the whole question of limitations on the exportation of goods, and that in time of war the Governor-General should have an absolute discretion as to the goods, the exportation of which should be prohibited, but that otherwise only those goods should be prohibited from export which are specified in the section.

The whole question of prohibition on the exportation of goods having been dealt with in Commonwealth legislation it appears that any legislation by a State supplemental to that legislation is inconsistent therewith within the meaning of section 109 of the Constitution, and is according to the extent of the inconsistency invalid.

Section 8 of the South Australian Act makes it an offence for any person to export sandalwood to any place beyond Australia unless he has been registered, and enables such conditions to be imposed with regard to registration as to enable the maximum amount of sandalwood which the registered person may export to be fixed.

This section is inconsistent with Commonwealth law inasmuch as it prevents the free exercise by any person who is the owner of sandalwood of his right to export that product if he so desires subject only to the conditions provided by or under Commonwealth law.

I am accordingly of the opinion that section 8 of the South Australian Act is invalid.

[Vol. 24, p. 854]